ex- LtCol, 

Current Discharge and Applicant’s Request

Application Received:  20220831
Characterization of Service Received:    
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
Authority for Discharge:   MARCORSEPMAN 4104

Applicant’s Request:  Characterization change to:  
Narrative Reason change to:  REQUESTED, BUT NOT SPECIFIED
Reentry Code change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:  NONE		Active:  20050116-20050325 UNC

Period of Service Under Review:
Date of Appointment:  20050501	Age:  23
Years Contracted:  Indefinite
Date of Discharge:  20211224	Highest Rank:  LtCol
Length of Service:  16 Year(s)   07 Month(s)   24 Day(s)
Education Level:  	AFQT:  NFIR
Deployment/Operation: 

Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle EX (3) Pistol EX (7) BSM MSM (3) NMCCM (3) ARCOMM (2) CAR JMUA NUC (3) MUC (2) NDSM ACM w/1 star ICM w/1 star GWOTEM GWOTSM KDSM HSM (2) SSDR (5) MCCIR NATO-ISAF 

Periods of UA:  NONE
Periods of CONF:  20210927 - 20211004, 08 days
Other Time Lost per DD214:  NONE

NJP:  NONE   SCM:     CIVIL ARREST:     CC:   

SPCM:  

Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20230323
NDRB Documentary Review Docket Number:	MD22-5050
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

 “UNDER HONORABLE CONDITIONS (GENERAL)”

The NDRB will recommend to Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	

Additional Statements

	From Applicant:		From/To Representation:		From/To Congress member:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant contends that the conditions and handling of his misconduct is deserving of consideration for clemency, should the discharge be viewed as a continuation of his court-martial conviction.
2.	The Applicant contends that his discharge characterization is inequitable because he deserves an Honorable discharge due to the high quality of service he rendered over 17 years, which was so meritorious and exceptional that any other characterization is clearly inappropriate.
3.	BOARD ISSUE – The Board considered the Applicant’s mental health condition while in service.

Discussion

Date:  20240222		Location:  	Representation:  

The Naval Discharge Review Board (NDRB), under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

The Applicant's record of service included:

  for  of the UCMJ:  

:  

The Applicant requests that the NDRB apply principles of clemency in correcting his discharge status, should it conclude that his discharge was a continuation of his court-martial conviction.  He contends that he is deserving of consideration for clemency due to the high quality of service rendered during his 17 years of service.  

In consideration for all factors, to include weighing the severity of the misconduct in relation to the assigned characterization/narrative for discharge, the Board determined that the unique circumstances of this case did not warrant relief based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  Additionally, clemency is a general term for the administrative review or action, other than the correction of legal error, which results in mitigation, remission, or suspension of the whole or any part of the unexecuted portion of a court-martial sentence, restoration to duty, the voluntary retention on active duty beyond the obligated term of enlistment, or reenlistment.  Clemency also includes substitution for good cause of an administrative discharge for an executed punitive discharge or dismissal in select cases.  The Board did not find the findings of the Applicant’s court martial and tenets of his qualified resignation sufficient to warrant clemency.  The Applicant’s decision to resign was voluntary and executed in lieu of further administrative processing per his own request.  Given the independent action requested by the Applicant and approved by the Secretary of the Navy, the Board found clemency unwarranted in this case.  

:  

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

The Applicant, while serving as the Commanding Officer, Advanced Infantry Training Battalion, School of Infantry-East (SOI-E), posted a video on social media in which he criticized the actions of senior U.S. government civilian and military leadership for the Afghanistan withdrawal.  The following day, the CO, SOI-E relieved the Applicant of command and verbally warned him against making any posts in violation of existing regulations.  Between 27 August 2021 and 16 September 2021, the Applicant posted multiple messages and videos on social media.  On 17 September 2021, the CO, SOI-E issued the Applicant a written order to refrain from posting to social media.  Between 25 and 26 September 2021, the Applicant continued posting messages on social media in which he criticized senior U.S. government civilian and military leadership.  On 26 September 2021, CO, SOI-E ordered the applicant into pretrial confinement.  The Applicant pled guilty at a Special Court-Martial for violations of Articles 88, 89, 90, 92 and 133 for his actions and decisions during the months of August and September 2021.  

Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violations of UCMJ Articles 88, 89, 90, 92, and 133 are such offenses that can result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant received a forfeiture of pay and a punitive letter of reprimand.  However, the Applicant’s Command did not pursue a punitive discharge but opted instead to recommend that the Applicant be required to show cause for retention in the Marine Corps at a Board of Inquiry (BOI).  Instead, pursuant to his plea agreement, the Applicant submitted a request for Resignation In Lieu Of Further Administrative Processing (RILFAP) on 23 November 2021.  Previously on 19 November 2021, the Applicant had submitted a request for Honorable discharge to the Secretary of the Navy.  The Command recommended that the Applicant’s RILFAP request be approved, but that the Applicant be separated with an Under Honorable Conditions (General) discharge, which was granted on 24 December 2021.

When reviewing discharges, the NDRB considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an Honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  

In this case, the Applicant’s service was honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  In making its determination, the NDRB found the Applicant’s court-martial conviction to be significant acts of misconduct that violated his Oath of Office and reflected willful misconduct that demonstrated he was unfit for further service.  The Applicant contends that his assigned discharge characterization is inequitable as it does not reflect the contributions and accomplishments during his 17 years of meritorious and exceptional service.  In other words, it is patently unfair to find that one month of misconduct could wipe out 17 years of otherwise meritorious service.  Further, and although acknowledging his misconduct, the Applicant contends that his behavior and violations do not outweigh the positive aspects of his service as reflected by the commendatory testaments found in his service record, specifically extracted from his fitness reports, and numerous decorations, including those earned during multiple deployments to Iraq and Afghanistan.  

As previously stated, the Applicant was found guilty at a Special Court-Martial for violations of Articles 88, 89, 90, 92 and 133 for his actions and decisions during the months of August and September 2021.  The Applicant considered his misconduct isolated and not representative of his career as a whole, which he contends was honorable up until that point, and the merit of which he contends outweighs the misconduct committed.  

The Board found otherwise.  Specifically, the Board found the Applicant’s willful and conscious disobedience; disregard of multiple warnings/notice from his Command; and the misuse of his positional authority and rank outweighed the positive aspects of the member’s service record.  Interestingly, the Applicant himself acknowledged during his hearing, that one month of breaking the rules could outweigh the positive aspects of his service.  However, the Applicant also offered he believed his actions during that month of misconduct were based on his desire to help the service and as such should not outweigh his superior performance of 17 years.  Nonetheless, the Board held the Applicant purposely failed to act as an Officer of Marines, and this failure of duty (even though a mere percentage of his entire career) was substantial enough to outweigh the positive aspects of the Applicant’s service record.

Issue 3: The Board considered the Applicant’s mental health condition while in service.

Although the Applicant did not expressly claim mental health was a factor in their discharge, the Board nonetheless reviewed the Applicant’s case in accordance with 10 U.S.C. § 1553, and pursuant to the Kurta Memo and other applicable regulations and guidance, including the Wilkie Memo.  Under the Kurta Memo, “[m]ental health conditions, including PTSD; sexual assault; and sexual harassment inherently affect one’s behaviors and choices causing veterans to think and behave differently than might otherwise be expected.”  Although, “[l]iberal consideration does not mandate an upgrade, [r]elief may be appropriate … for minor misconduct commonly associated with mental health conditions … and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.”  Additionally, “substance seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration.”  However, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”  Therefore, “Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.” See USD (P&R) Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” 25 August 2017 (“Kurta Memo”).

The review of discharges pursuant to the Kurta Memo and its other applicable regulations/guidance generally involves four questions: a) Did the veteran have a condition or experience that may excuse or mitigate the discharge; b) Did that condition exist/experience occur during military service; c) Does that condition or experience actually excuse or mitigate the discharge; and d) Does that condition or experience outweigh the discharge?  

In this case, the Board found that: a) the Applicant did have a condition/experience that may excuse or mitigate the discharge; b) the condition existed during military service; c) the condition/experience did not mitigate the underlying basis/misconduct for the discharge; and d) the condition/experience did not outweigh the Applicant’s assigned Discharge Characterization.  

MEDICAL BOARD MEMBER OPINION
1.	Does the available record reasonably support a DSM mental/behavioral health condition, PTSD, TBI, or Sexual Trauma/Abuse/IPV existed at the time of the Applicant’s military service?	Yes
ANXIETY DISORDER NOT OTHER SPECIFIED	
2.	A.	Were these conditions present at time of misconduct?	Yes
Present but under long-term treatment w sertraline without requirement for specialty care.  No duty limitations.	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Yes
Command directed evaluation after initial misconduct and brig intake evaluation	
4.	Medical Board Member comments:		

In review of the complete record, the NDRB noted that all considerations raised by the Applicant within his discharge upgrade petition were considered and evaluated by the Separation Authority.  Consideration criteria specifically cited by the Separation Authority within his decision letter includes the Applicant’s military record, family circumstances, combat service and commendable performance until the time of the misconduct leading to his relief from command and court-martial.  The Board further considered the possibility that a mental health condition might have mitigated or outweighed the Applicant’s assigned discharge, but concluded no such condition had such an impact.

Given the ultimate question of whether or not the Applicant’s otherwise honorable and commendable service outweighed the misconduct committed during August and September 2021, the Board concluded that it did not.  Upon his initial missteps, the Applicant was relieved from command, as was well within the purview of his chain of command, but given the option to serve out the remainder of his career in the Marine Corps honorably.  The Applicant, instead, chose to defy his chain of command through continued and repeated violations of the UCMJ, which constituted significant acts of misconduct that violated his Oath of Office and reflected willful misconduct that demonstrated he was unfit for further service.  Based on the Applicant’s record of service, the Board determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

ADDENDUM:  Information for the Applicant

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Service [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  (See www.va.gov/discharge-upgrade-instructions).  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost – including inpatient or crisis residential care for up to 30 days and outpatient care for up to 90 days.  Veterans do not need to be enrolled in the VA system to use this benefit.  In order to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations. 

Employment/Educational Opportunities: The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE-CODE” is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct: DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades: There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & (d)(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

Post-Service Conduct: The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate that in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to: Secretary of the Navy Council of Review Boards, Attn: Naval Discharge Review Board, 720 Kennon Street SE Rm 309, Washington Navy Yard DC  20374-5023.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text 274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost; you can use this benefit regardless of your discharge status, or enrollment in VA health care.  In order to find the nearest VA office to receive assistance, go to https://www.va.gov/find-locations/?facilityType=health.